White v Philips
 [2017] EWHC 386 (Ch)

WTLR Issue: Winter 2018 #170





The deceased, Raymond Ian White, died on 22 July 2010, a year after he was diagnosed with terminal cancer. On 28 May 2010 he gave instructions for a will to a legal executive at a local law firm; this will was executed on 4 June 2010.

The claimant, Linda White, was the deceased’s widow. The defendant was one of his three children from a previous marriage, and was appointed executrix by the June 2010 will. Mrs White claimed that at the time the deceased gave the instructions and executed the will he lacked testamentary capacity, partly due to the strong opioid drugs he was taking. She therefore claimed that the will was invalid, and as a result the deceased died intestate. She stood to benefit in such circumstances.

The court set out the following principles: the burden of establishing capacity at the relevant time is on the person propounding the will (in this case the defendant). There is a rebuttable presumption that a will which is duly executed and rational on its face was executed by a testator who had testamentary capacity. If this is the case (and it was with the will in question) the evidential burden then shifts to the objector (in this case the claimant) to raise a real doubt about capacity. If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity. In order to meet that burden the defendant has to establish all four elements set out in Banks v Goodfellow.

The question of knowledge and approval is distinct from the question of capacity. To determine this matter, it was necessary to ask whether (1) at the time the testator gave the instructions, he had testamentary capacity; (2) the document gave effect to his instructions; (3) those instructions continued to reflect his intention; and (4) at the time he executed the will he knew what he was doing.

The court considered the contemporaneous evidence, and the expert evidence prepared by two consultant psychiatrists. While the evidence suggested that at the relevant time the deceased did suffer from a level of opiate toxicity and was in decline generally, the issue was whether that was of a sufficient degree to rob him of his testamentary capacity at the time he gave instructions for his will and/or when he signed the document prepared in accordance with those instructions.


  1. 1) The deceased had testamentary capacity when he gave instructions for his will and when he signed it. While there was sufficient doubt as to capacity to shift the evidential burden to the defendant to prove capacity, on the facts of this case, the burden was discharged.
  2. 2) The deceased knew and approved of the contents of his will. Not only had the court already found that he had testamentary capacity, but he also was advised of the terms of the will before execution, if not by reading it himself then having its provisions read over to him, and the will reflected his continuing testamentary intentions.
  3. 3) In the specific context, what was fair, rational and just had a number of permutations. It was not irrational, unfair or unjust for the deceased to provide that one’s estate shall pass to his children from a previous marriage (or indeed one of them) in circumstances where the will also provides that the current spouse has the use and benefit of the majority of the estate including the house, for the foreseeable future
 [1] Sadly, on 22 July 2010 Mr Raymond Ian White passed away. He had been suffering from terminal rectal cancer which had been diagnosed in July 2009 at which time he had been told that it was inoperable albeit he was not told how long he had to live. 
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Counsel Details

Mr J Howlett (Ropewalk Chambers, 24 The Ropewalk, Nottingham NG1 5EF, tel 0115 947 2581, email clerks@ropewalk.co.uk) for the claimant.

Mr S Roberts (St Philips Chambers, 41 Park Square, Leeds LS1 2NP, tel 0113 244 6691, email enquiries@st-philips.com) for the defendant.